Ron Smith: What to do with the prisoners?

We seem to be agonising once again over captives in the ‘war on terror’ and, particularly, over prisoners taken as part of the Afghan counter-insurgency. Of course, it goes without saying that we have an obligation to treat captives humanely. This derives from general principles which require us to treat all human beings as part of a single moral community, even if they do not appear to reciprocate. More directly, the obligation comes from our membership of the United Nations (and the associated Declaration of Human Rights) and, more specifically, to our commitment to the various Geneva Conventions.

Taking what is going on in Afghanistan to be a kind of war, it may be said that captives are prisoners of that war and, by virtue of this, have rights in regard to the way in which they are held and treated. If it is the case that present arrangements for the detention of such captives does not enable us to satisfy these requirements (noting the regular accusations of torture and ill-treatment), then we may need to consider alternatives. If, for whatever reason, we judge that we cannot hold prisoners ourselves, then we should determine whether there is not an ally that has the capacity to do so. Obviously there is, and that is the United States in its purpose-built facility at Guantanamo Bay, though whether the present US Administration would be willing may be another matter.

What we should not do is conclude that this is all too difficult and stop participating in the war at all. This, of course, is precisely what those who are promoting this issue as a major problem would like us to do and this is why it has been raised again now. What we should not do either, is attempt to adopt strategies in which prisoners are not taken, so as to avoid the problem.

As always, there is another way of looking at these things. We might see the present conflict in Afghanistan as essentially a matter of civil order, in which various Western countries, including ourselves, have an interest because of the long-term security implications for us of the return of the Taliban. On this reading, the insurgents are violent criminals (albeit with a political agenda) and New Zealand forces (with their allies) are merely assisting the Afghan authorities in rounding these persons up (or killing them, if they ‘resist arrest’). There is a good deal about what has been said and done in recent times that would support such a reading (including the ‘rules of engagement’, about which I was so critical in a recent blog).

It would then be appropriate to hand over captives to the Afghan authorities, whatever they had done to prisoners in the past. It would be recognition of the ultimate sovereignty of that state. After all, the treatment of prisoners (of whatever kind) is a continuing issue in many of the countries of the world, is it not? I should add that this policy would not preclude our redoubling our efforts to influence the Afghan regime to treat its prisoners more humanely.

We might also note here that humane treatment of prisoners is a two-way street. It is very much limited by the willingness of the captive to cooperate with his captors. A situation in which prison guards are continuously at mortal risk from their prisoners, is a situation in which, even in the best of circumstances, the regime under which they are held cannot be other than harsh and restrictive. It is also a situation in which maltreatment of prisoners, by guards who perceive themselves as constantly at threat, may be understood, if not justified.

There is another consequence of viewing captives in Afghanistan as criminals rather than as prisoners of war. In this case they may be tried and, if convicted, sentenced for specific crimes and subsequently released when their sentence has been served. If we view them as POWs, and hold them as such, they may not be released until the ‘war’ is over. Indeed, they should not be. Otherwise, they merely come back, as recent US experience with Guantanamo captives has shown.

Treatment of captives is a problem but there are solutions. These may not satisfy the most fastidious humanitarians and, certainly, they are unlikely to convince those who are ideologically opposed to the war itself but if we see these forces as a continuing threat to our security interests, as well as to our fundamental interests in human rights and civil society, then we need to maintain our effort to defeat them. In this context, our treatment of captives is a relatively minor matter but one which we (and our allies) need to take seriously.